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Blackwood v The Queen

Blackwood v The Queen

Case [2021] NZHC 33 28 January 2021

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2014-004-002293

[2021] NZHC 33

BETWEEN RICHARD TIMOTHY BLACKWOOD

AND

Applicant

THE CROWN

Respondent

Hearing: On the papers

Appearances:

J Claymore for Mr Blackwood D Johnstone for the Crown

Judgment:

28 January 2021

Reissued:

23 February 2021

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Thursday, 28 January 2021 at 12:30 pm.

Registrar/Deputy Registrar

Solicitors: Claymore Partners Limited (J Claymore), Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland

BLACKWOOD v THE CROWN [2021] NZHC 33 [28 January 2021]

[1] Mr Blackwood was charged with 28 separate charges by the Financial Markets Authority (the FMA). He was convicted as a party to four charges of theft by a person in a special relationship after a second trial in the High Court.1 He appealed to the Court of Appeal, which allowed his appeal.2 Mr Blackwood now applies for indemnity costs under the Costs in Criminal Cases Act 1967 in relation to his High Court costs. He says that the charges ought never to have been brought against him, there being no evidence to prove that he knew about the wrongdoing.

Procedural history

[2] The FMA alleged that Mr Bublitz knowingly misappropriated funds raised from the public by Mutual Finance Ltd (Mutual), a company he controlled, in breach of related party restrictions in a deed of guarantee between Mutual and the Crown. Messrs McKay and Blackwood were charged as parties to this offending.

[3] Messrs Bublitz, McKay, Morrison3 and Blackwood were charged on 11 March 2014. The first trial commenced before me on 8 August 2016 and was set down for 12 weeks. In November 2016 the defendants, apart from Mr Blackwood, applied for a stay of proceedings on the grounds of abuse of process, largely because of the length of the trial. I dismissed that application on 23 November 2016.4 I noted, however, that at the time of issuing that decision we had just completed week 16 of the trial. The Crown estimated that it would not finish until late February 2017. I considered that it was possible the trial would not be completed until May or June 2017. I observed that I had already dismissed 12 charges in the 7th week of trial, and another 22 charges in the 10th. I considered that the Crown had not appropriately pared back the case to its essentials. Crown counsel provided advice that in the event the trial was not severed and proceeded subject to a direction by the Court that the Crown reduce the number of charges, the Crown would elect to proceed on a specified number of charges. Nineteen charges and 32 verdicts were identified by the Crown as representing the gravamen of the allegations against the defendants. For reasons of case management, I therefore dismissed the other charges.

1 R v Bublitz [2019] NZHC 222.
2 Bublitz v R [2019] NZCA 364, [2019] 3 NZLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blackwood v The Queen

Details

AGLC: Blackwood v The Queen [2021] NZHC 33
Case: [2021] NZHC 33
Decision Date: 28 January 2021

CaseChat Overview and Summary

The case of Blackwood v The Queen was heard in the High Court of New Zealand, Auckland Registry. Mr Blackwood was initially charged with 28 separate charges by the Financial Markets Authority (FMA). After a first trial was aborted due to late disclosure by the Crown, Mr Blackwood was subsequently convicted on four charges of theft by a person in a special relationship in a second trial. However, Mr Blackwood's appeal to the Court of Appeal was successful, leading him to apply for indemnity costs under the Costs in Criminal Cases Act 1967 in relation to his High Court costs. Mr Blackwood argued that the charges against him should never have been brought due to a lack of evidence proving his knowledge of the wrongdoing.

The court considered the legal issues involved in determining whether Mr Blackwood was entitled to indemnity costs, including the criteria outlined in section 5(2) of the Costs in Criminal Cases Act 1967. The court concluded that while the prosecution was appropriate, the manner of charging and the conduct of the trial were problematic, and thus an award of costs was appropriate. However, the court found that full indemnity costs were not appropriate as the Crown did not act in bad faith or with inexcusable negligence. Instead, the court considered the quantum of costs to be awarded based on the special difficulty, complexity, and importance of the case. The court awarded Mr Blackwood costs in the sum of $90,000, taking into account the relevant factors and the need for parity with a similar case.

In conclusion, the court awarded Mr Blackwood costs in the sum of $90,000 under section 5 of the Costs in Criminal Cases Act 1967, acknowledging the problematic conduct of the trial and the special circumstances of the case. However, the court found that full indemnity costs were not appropriate as the Crown did not act in bad faith or with inexcusable negligence.

Orders